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ARTICLE · 26 APRIL 2019

No Notarisation Requirement For Amendments To Property Purchase Agreements Once Conveyance Is Declared

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The German Civil Code (Bürgerliches Gesetzbuch, BGB) stipulates the mandatory form of notarisation for a contract which has as its object the obligation ...

GermanyReal Estate and Construction

Introduction

The German Civil Code (Bürgerliches Gesetzbuch, BGB) stipulates the mandatory form of notarisation for a contract which has as its object the obligation to transfer or acquire a property. Defects in form can be remedied by (i) the so-called conveyance (the in rem agreement to transfer) and additionally (ii) the registration of the transfer of ownership in the land register. It is always questionable whether and to what extent subsequent amendments to the purchase agreement also require notarisation prior to the transfer of ownership. For the group of cases in which the conveyance has already been declared, the Federal Court of Justice (BGH) last ruled in 1984, following old decisions from the imperial court (Reichsgericht), that a later amendment does not require notarial form. The obligation triggering the formal requirement was fulfilled in full and therefore no longer existed. Contrary to the almost unanimous dogmatic criticism in the literature and

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